Opinion
No. 1D21-3614
05-31-2023
Paul Anthony BENSON, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
M.K. Thomas, J.
Appellant was charged with and convicted of violating his pretrial release for domestic violence. He was sentenced to probation with special conditions imposed. On appeal, Appellant contends that the special conditions are invalid because they are not reasonably related to rehabilitation. We agree and reverse.
Appellant was originally arrested for battery and ordered not to have any contact with the alleged victim. Yet he called the victim multiple times from jail. Appellant was then charged with four counts of violation of pretrial release for domestic violence. Notably, he was never officially charged with battery.
Appellant pleaded nolo contendere to the charges for violating pretrial release and was sentenced to twelve months of probation. The following special conditions to the probation were imposed: no contact with the victim, maintain an alternate residence, be fitted with a GPS ankle monitor, and complete a Batterer's Intervention Program (BIP).
Apparently, Appellant again violated probation while this appeal was pending. He entered a plea and was sentenced to jail, with credit for time served. Because we have not received a notice from either party regarding mootness or waiver, this appeal proceeds.
The imposition of special conditions of probation is reviewed for abuse of discretion. See Spano v. State , 60 So. 3d 1108, 1109 (Fla. 4th DCA 2011) ; Williams v. State , 879 So. 2d 49, 50 (Fla. 1st DCA 2004). A trial court has broad discretion in imposing special conditions of probation, but those conditions must be "reasonably related to rehabilitation." Carty v. State , 79 So. 3d 239, 240 (Fla. 1st DCA 2012) (quoting Stephens v. State , 659 So. 2d 1303, 1304 (Fla. 1st DCA 1995) ). "In determining whether a condition of probation is reasonably related to rehabilitation, ... a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality." Id. (quoting Biller v. State , 618 So. 2d 734, 734–35 (Fla. 1993) ). Stated differently, "a condition is valid if it satisfies one of the following Biller factors: (1) has a relationship to the crime for which the offender was convicted, (2) relates to conduct that is criminal in nature, or (3) requires or forbids conduct that is reasonably related to future criminality." Villanueva v. State , 200 So. 3d 47, 53 (Fla. 2016) (emphasis added).
The parties agree that under the first Biller factor the special conditions imposed must relate to domestic violence for the conditions to be lawful. Appellant argues the special conditions imposed on his probation are unlawful because they do not relate to the crime for which he was sentenced—violation of pretrial release for domestic violence. The State counters that Appellant's conviction relates to domestic violence because it requires as a foundation that there was an arrest for the offense. A breakdown of the sequential events here is informative.
Appellant was sentenced for violating section 741.29(6), Florida Statutes, which states, "A person who willfully violates a condition of pretrial release provided in s. 903.047, when the original arrest was for an act of domestic violence as defined in s. 741.29, commits a misdemeanor of the first degree ...." Contrary to the State's contention, the charge of violating section 741.29(6) is not linked to domestic violence because violation of that section does not require proof that any act of domestic violence occurred, simply an arrest for the same. See Fla. Std. Jury Instr. (Crim.) 8.25 (an element of the crime of violating a condition of pretrial release from a domestic violence charge is that the defendant "was arrested for an act of domestic violence").
There is no record evidence of an act of domestic violence occurring here. Rather, the record only shows Appellant was arrested for domestic violence. Because Appellant's conviction for violating pretrial release is not inextricably linked to domestic violence, the special conditions of his probation fail the first Biller factor. See Carty , 79 So. 3d at 240 (reversing portion of the defendant's sentence requiring him to complete a BIP where he was acquitted of battery and burglary charges because the condition was unrelated to the crime for which he was convicted—resisting an officer without violence); Sheppard v. State , 974 So. 2d 529, 531 (Fla. 5th DCA 2008) (reversing conviction for violating pretrial release where the defendant was never arrested for an act of domestic violence but simply received a summons to appear).
As to the second Biller factor—whether the special conditions relate to conduct that is criminal on its own—the conditions also fail. Without an order prohibiting the activity, it would not be unlawful for Appellant to have contact with the alleged victim or not have an ankle monitor, and he would not have to maintain an alternate address. Further, because Appellant was not convicted of domestic violence, it would not be a crime for him not to attend a BIP as part of his probation. See § 948.038, Fla. Stat. (requiring as a condition of probation successful completion of a BIP where a defendant was convicted of domestic violence).
Lastly, the third Biller factor asks whether the special condition requires or forbids conduct that is reasonably related to future criminality. Here, there is no record evidence that Appellant had a prior domestic violence conviction, and there is no evidence Appellant has a propensity to commit any particular crime, including domestic violence. Accordingly, the special conditions also fail under the third Biller factor.
Ultimately, Appellant's domestic violence charge does not alone make the special conditions imposed lawful where the crime for which Appellant was convicted was only related to an arrest for domestic violence. Thus, it was improper for the trial court to impose the special conditions to Appellant's probation. Accordingly, we reverse the portion of Appellant's sentence requiring him to have no contact with the victim, maintain an alternate residence, be fitted with a GPS ankle monitor, and complete a BIP. We remand the case for the trial court to strike the special conditions of Appellant's probation.
Respectfully, the majority rejects the dissenting opinion's argument that Biller was superseded by the enactment of section 948.039, Florida Statutes. Sections 948.039 and 948.03(2), Florida Statutes, provide broad discretion to the trial judge to determine probation conditions. See Villanueva , 200 So. 3d at 53. However, a specific statute "may modify that judicial discretion by requiring courts to impose certain mandatory conditions in cases involving an enumerated list of offenses." Id . No such mandatory rule applies here to alter the broad discretion afforded to trial courts. That said, finding the issue to be critical and likely reoccurring, we certify to the Florida Supreme Court this question of great public importance:
DOES SECTION 948.039, FLORIDA STATUTES , SUPERSEDE BILLER V. STATE , 618 SO. 2D 734 ( FLA . 1993), WITH RESPECT TO THE PROPER FACTORS THAT A COURT MUST CONSIDER BEFORE IMPOSING A SPECIAL CONDITION OF PROBATION ?
REVERSED and REMANDED with instructions; Question Certified.
Kelsey, J., concurs; Winokur, J., concurs in part and dissents in part with opinion.
Winokur, J., concurring in part and dissenting in part.
I agree with the majority that it would have been inappropriate for the trial court to fashion special conditions of probation based strictly on battery, or on any other domestic violence offense, for the simple reason that Benson was neither charged with nor convicted of any such offense. I also agree that Biller v. State , 618 So. 2d 734 (Fla. 1993), has usually provided the analytical framework for questions regarding the legality of special conditions of probation. I question, however, the continuing viability of Biller in light of the enactment of section 948.039, Florida Statutes. And applying this statute leads to a different conclusion than the one reached by the majority.
In Biller , the Florida Supreme Court determined the legality of a special condition of probation prohibiting the petitioner from using alcohol, imposed following a conviction of carrying a concealed firearm. Id . at 734. The supreme court adopted the holding of Rodriguez v. State , 378 So. 2d 7 (Fla. 2d DCA 1979), which it wrote "correctly states the law with respect to special conditions imposed upon individual probationers." Biller, 618 So. 2d at 735. The Biller court approved the Rodriguez court's statement that a special condition of probation is legitimate when it is "desirable for purposes of rehabilitation," and its test for determining whether a special condition of probation is invalid, which read as follows:
In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.
Id . at 734-735 (citing Rodriguez , 378 So. 2d at 9 ). See also Stephens v. State , 659 So. 2d 1303, 1304 (Fla. 1st DCA 1995) (citing Biller for the proposition that "a condition of probation cannot be imposed if it is not reasonably related to rehabilitation" ). The Rodriguez court, in turn, had cited three out-of-state cases for this rule. Rodriguez , 378 So. 2d at 9–10. The only statutory authorization for the special condition cited by the Rodriguez court was section 948.03(1), which stated, as it does now, that "[t]he court shall determine the terms and conditions of probation ...." See § 948.03(1), Fla. Stat. (1977).
Biller was cited dozens of times as providing the correct test for determining whether a special condition of probation was legal. However, in 2004 the Legislature enacted a statute that, for the first time, specifically authorized and set forth requirements for special conditions of probation. Ch. 2004-373, § 26, Laws of Fla. In pertinent part, section 948.039, Florida Statutes, reads as follows:
The court may determine any special terms and conditions of probation or community control. The terms and conditions should be reasonably related to the circumstances of the offense committed and appropriate for the offender. The court shall impose the special terms and conditions by oral pronouncement at sentencing and include the terms and conditions in the written sentencing order.
The Legislature plainly established a standard for determining whether a special condition of probation was permissible: when it is 1) reasonably related to the circumstances of the offense committed, and is 2) appropriate for the offender. These requirements contrast with the nonstatutory Biller factors for valid special conditions of probation. The statute does not require a special condition of probation to be related to rehabilitation or "future criminality." And while the statute does require the condition to be related to the offense, the statutory standard permits conditions in broader circumstances than those permitted under Biller : under Biller the condition must have a "relationship to the crime," whereas the statute requires only that the condition be "reasonably related to the circumstances of the offense." The Biller standard focuses on the crime itself, whereas the statute focuses on the "circumstances" of the crime.
Some of the special conditions of probation imposed upon Benson are easily justifiable under section 948.039. The no-contact condition is reasonably related to the circumstances of the offense. Benson violated a release condition by contacting the victim, so a special condition of probation prohibiting contact with the victim is, at the least, related to the circumstances of the offense. The same is true for the alternate-residence condition. It is difficult to image how a no-contact condition could be enforced if the probationer lived at the same residence as the victim.
As for the remaining special conditions, it seems that the trial court should be given the opportunity to determine whether they are valid in accordance with section 948.039. The mere fact that Benson was not convicted of battery or any other domestic violence offense, nor that the conditions do not relate to rehabilitation, is insufficient to invalidate the conditions imposed, if the trial court finds that they are reasonably related to the circumstances of the offense and are "appropriate" for Benson.
It is not clear whether Benson is even eligible for a batterers’ intervention program under the terms of sections 741.28(2) and 741.281, Florida Statutes. I do not address this issue because Benson neither preserved this argument below nor presented any such argument in this appeal.
In short, it appears that Biller was superseded by statute in 2004 when section 948.039 was enacted and set forth different requirements for special conditions of probation than Biller required. The statute does not require special conditions to support rehabilitation, and permits conditions more broadly related to the offense than Biller allows.
This view, however, does not take account of Villanueva v. State , 200 So. 3d 47 (Fla. 2016). The petitioner in Villanueva had been acquitted of lewd and lascivious molestation but found guilty of misdemeanor battery, a lesser included offense. Id . at 48. In spite of the fact that the petitioner had been acquitted of the sexual offense, the trial judge ordered him to complete mentally disordered sex offender therapy as a special condition of probation. Id. at 49. In determining whether this condition was permissible, the Florida Supreme Court applied the test laid out in Biller . Finding explicitly that the special condition of probation satisfied none of the Biller factors, the supreme court held that the condition was invalid. Id at 53-54.
The Villanueva court mentioned section 948.039 in passing, but did not address whether it imposes a standard that governed the validity of a special condition of probation, applying Biller instead. The supreme court did not suggest that Biller has been superseded by statute. Because the supreme court did not address this issue in Villanueva , I agree with the majority that we should certify a question regarding this matter.
It appears to me that a different conclusion may have been reached in Villanueva had it applied section 948.039 rather than Biller. In addressing whether the special condition had "a relationship to the crime for which the offender was convicted," the Court noted that mentally disordered sex offender therapy "is not reasonably related to Villanueva's conviction for misdemeanor battery." Id . at 53-54. Perhaps so, but considering whether the condition was "reasonably related to the circumstances of the offense committed" could very well have led to a different result.
Even if Biller had not been superseded by statute, I would agree only partly with the majority. I agree that enrollment in a batterers’ intervention program has no relationship to the crime of which the offender was convicted, as that phrase from Biller has been defined. Likewise, the trial court improperly ordered electronic monitoring as a consequence of alleged domestic violence, which again was not the crime at issue.
I cannot agree, however, that the first two conditions violated Biller . As stated above, the no-contact condition is certainly related to the crime of which the offender was convicted, which was contacting the victim in violation of a prior no-contact order. And again, the same is true for the alternate-residence condition, as the no-contact condition requires the alternate-residence condition.
In summary, Villanueva suggests that Biller still provides the proper test to consider whether a special condition of probation is valid. If so, I concur only in part with the majority. However, I have doubts that Biller has not been superseded by section 948.039, and believe we should certify a question to the Florida Supreme Court to clarify.